International arbitration law and rules in Ukraine

The two permanent arbitral institutions in Ukraine – the International Commercial Arbitration Court and the Maritime Arbitration Commission – fall under the auspices of the Ukrainian Chamber of Commerce and Industry. Foreign arbitral institutions can administer arbitrations seated in Ukraine. In 2017, the Ukrainian Arbitration Act (based largely on the UNCITRAL Model Law), Civil Procedure Code and Commercial Procedure Code of Ukraine underwent significant reform. These reforms included grants of additional powers to arbitral tribunals, for example powers to order a cross-undertaking to pay damages where interim measures are ordered, and provisions deeming arbitration agreements to be validly concluded if contained in an exchange of data messages.

1.1 A right of incorporated and unincorporated businesses to resolve their disputes by way of arbitration is enshrined both at the level of Ukraine’s national legislation on arbitration and in a number of bilateral and multilateral treaties.

1.2 Ukraine agreed to be bound by the following major international treaties on arbitration: the New York Convention 1  and  the 1961 European Convention.  2 It is also a party to a number of bilateral treaties on mutual legal assistance in civil and commercial matters, which contain provisions related to arbitration

1.3 With regards to Ukraine’s national legislation on arbitration, it is important to note that international and domestic arbitration tribunals seated in Ukraine operate within a distinct legal framework. The Law of Ukraine “On International Commercial Arbitration” (Ukrainian Arbitration Act) applies to international commercial arbitration proceedings if the seat of arbitration is in the territory of Ukraine.  3  Domestic arbitral proceedings, in turn, are governed by the provisions of the Law of Ukraine “On Courts of Arbitration” (Law on Domestic Arbitration). 4

1.4 The Civil Procedure Code of Ukraine (CPC) complements the Ukrainian Arbitration Act and the Law on Domestic Arbitration. 5  Among other things, the CPC regulates the procedure for the recognition and enforcement of foreign court decisions, foreign and domestic arbitral awards. 6  Other relevant legislation includes the Commercial Procedure Code of Ukraine (CoPC), 7  which sets forth that more than 20 categories of disputes that cannot be referred to domestic and international commercial arbitration, 8  and a number of other legislative acts, which positively assert that certain categories of disputes are capable of being settled by international arbitration. 9

1.5 A useful analysis of court practice in Ukraine on the recognition and enforcement of foreign arbitral awards can be found in an outdated, yet still effective, Resolution of the Plenum of the Supreme Court of Ukraine “On the Court Practice of Consideration of Applications for the Recognition and Enforcement of the Judgements of Foreign Courts and Foreign Arbitral Awards Rendered in the Course of International Commercial Arbitration in Ukraine” (Resolution No 12). 10  Other notable clarifications in relation to international arbitration summarised by Ukrainian courts include:

1. the Information Letter of the Higher Arbitrazh Court of Ukraine “On Certain Questions of Practical Application of Particular Norms of the Effective Legislation in Dispute Resolution”; 11
2. the Clarifications of the Higher Commercial Court of Ukraine (HCCU) “On Certain Questions of Practice on Resolving Cases to Which Foreign Companies and Organizations are Parties” (Clarifications No 04-5/608); 12
3. the Summary of the HCCU “On Court Practice on Resolving Cases to Which Foreign Companies and Organisations are Parties by Commercial Courts”; 13
4. the Information Letter of the HCCU “On Certain Questions Posed by Commercial Courts in Activities Reports for the Second Half of 2008 in Relation to the Application of the Norms of the Commercial Procedure Code of Ukraine” (Letter No 01-08/163); 14
5. the Information Letter of the HCCU “On Certain Questions Posed by Commercial Courts in Activities Reports for the First Half of 2009 in Relation to the Application of the Norms of the Commercial Procedure Code of Ukraine”; 15
6. the Resolution of the Plenum of the HCCU “On Certain Questions of Practice of the Application of the Commercial Procedure Code of Ukraine by Courts of First Instance”; 16  
7. the Letter of the Plenum of the High Specialised Court of Ukraine for Civil and Criminal Cases (High Specialised Court) “On the Summary of Court Practice for the Consideration of Cases on the Setting Aside of Awards of the International Commercial Arbitration Court of Ukraine at the Ukrainian Chamber of Commerce and Industry of Ukraine and Consideration of Applications on Their Recognition and Enforcement” (Letter of the High Specialised Court). 17  and
8. the Digest of the Supreme Court Case Law in cases related to the recognition of arbitration agreements, recognition and enforcement of international commercial arbitration awards. 18

1.6 It is notable that the Ukrainian Arbitration Act, as well as the provisions of the CPC and CoPC regulating arbitration-related matters, have undergone significant changes few years ago. On 3 October 2017, the Verkhovna Rada, the parliament of Ukraine, adopted the Law “On Amendment of the Commercial Procedure Code of Ukraine, Civil Procedure Code of Ukraine, Code of Administrative Procedure of Ukraine and Other Legislative Acts” (Law No 2147-VIII), which alongside restating, in full, three procedural codes (i.e., the CoPC, the CPC, and the Code of Administrative Procedure of Ukraine (СAP)), also introduced significant changes to more than 20 other legislative acts, including the Ukrainian Arbitration Act. 19  The latest amendments to Law No. 2147-VIII  entered into force on 18 October 2023. 20

1.7 In particular, the following major changes were introduced to the Ukrainian Arbitration Act by Law No 2147-VIII:

1. trial courts were stripped of powers to conduct functions on arbitration assistance and supervision and such functions were handed over to appellate courts at the legal seat of arbitration; 21
2. requirements as to the form of an arbitration agreement were amended to provide that such agreement is deemed to be validly concluded if it is contained in an exchange of data messages, provided the information contained therein is accessible for subsequent reference; 22
3. the procedural model of referral to arbitration is changed from the termination of the proceedings with prejudice to the termination of the proceedings without prejudice; 23
4. arbitral tribunals are granted express powers to request the parties in the arbitration proceedings to pay a provisional advance amount intended to cover the costs of arbitration or certain procedural action; 24
5. arbitral tribunals are granted express powers to order a cross-undertaking to pay damages to the respondent if it transpires that the applicant was not entitled to interim measures and the respondent suffered a loss as a consequence; 25 
6. arbitral tribunals are granted express powers to draw adverse inferences should any party to the arbitration proceedings fail to provide evidence at their request; 26  and
7. an arbitral tribunal or a party (subject to leave of the tribunal) is granted the right to apply to an appellate court at the place where evidence is located or a witness resides, with a plea to examine such witness, discover evidence or inspect them at the place of their location. 27

2.1.1 The Ukrainian Arbitration Act is based on the Model Law (1985) 28  and its current edition provides for the allocation of the authority for functions of arbitration assistance and supervision between the President of the Ukrainian Chamber of Commerce and Industry (UCCI President) and Ukrainian appellate courts at the legal seat of arbitration. 29

2.1.2 The Ukrainian Arbitration Act contains references to two permanent arbitral institutions under the auspices of the Ukrainian Chamber of Commerce and Industry (UCCI), namely the International Commercial Arbitration Court (ICAC) and the Maritime Arbitration Commission (MAC). The regulations of these regional arbitral institutions are set forth in two appendices to the Ukrainian Arbitration Act. 30

2.1.3 The ICAC and the MAC are presently the only two permanent arbitral institutions established in Ukraine that are competent to administer international commercial arbitration proceedings. However, this does not mean that foreign arbitral institutions (eg, the London Court of International Arbitration, the International Court of Arbitration, or the Arbitration Institute of the Stockholm Chamber of Commerce) cannot administer arbitrations seated in Ukraine.

2.2.1 Although, as noted above, the Ukrainian Arbitration Act is mainly based on the Model Law (1985) and therefore generally follows its structure, 31  there are also a number of notable differences. In particular, the scope of application of the Ukrainian Arbitration Act differs from the scope of application outlined in the Model Law (1985). 32  The former, for example, provides that disputes involving Ukrainian enterprises with foreign investment (with at least 10% foreign shareholding) 33  or involving participants of such entities may be referred to international commercial arbitration. 34

2.2.2 Another difference is that, unlike the Model Law (1985), the Ukrainian Arbitration Act provides that any conflict between a provision of the national legislation on arbitration and a corresponding provision of an international treaty shall be resolved in favour of the latter. 35  Thus, one may logically infer that any conflict between provisions of the Ukrainian Arbitration Act and, on the other side, provisions of an international treaty (ie, the New York Convention 36  and/or the 1961 European Convention 37  or any other bilateral or multilateral treaty) shall be resolved in favour of the latter.

2.2.3 The Ukrainian Arbitration Act also contains a definition of the term “commercial” which is referred to in the Model Law (1985) only as a guidance for interpretation.  38 Under the Ukrainian Arbitration Act, the term “commercial” is to be interpreted broadly to include trade relations, which can be either of a contractual or non-contractual nature. Further, it contains a non-exhaustive list of examples of such trade relations (eg, sale of goods and services, leasing, financing and transportation of goods and passengers). 39

2.2.4 The other provisions of the Ukrainian Arbitration Act generally follow the wording of the Model Law (1985) 40  and, but for the exceptions noted above, 41  have only been modified in order to fit in the general drafting language and practicalities of Ukrainian law.

2.3.1 Following the wording of the Model Law (1985), 42  the Ukrainian Arbitration Act stipulates a general rule that it shall apply to all international commercial arbitral proceedings where the seat of arbitration is located in the territory of Ukraine.  43 Some provisions of the Ukrainian Arbitration Act, however, apply even if the arbitral proceedings do not take place in Ukraine, for example, those provisions which are:

• related to enforcement of arbitration agreements;  44
• governing interim measures granted by the court in support of arbitral proceedings; 45  and
• related to the recognition and enforcement of awards. 46 

2.3.2 As mentioned above, the Ukrainian Arbitration Act applies exclusively to international commercial arbitration. 47  This is why the range of disputes expressly recognised by the Ukrainian Arbitration Act as those which are capable of being settled by arbitration, includes:

• disputes which arise out of contractual and other civil law relationships in the course of foreign trade and other types of international economic relations, provided that one of the parties is a commercial entity located outside Ukraine;
• disputes between entities with foreign investment and/or international associations and organisations established in the territory of Ukraine and disputes between their participants/shareholders as well as their disputes with other subjects of Ukrainian law; and
• disputes between the bond issue administrator acting in the interests of bondholders and the bond issuer and/or persons who provide security for such bonds, if at least one of the parties to the dispute is an enterprise with foreign investments.  48

2.3.3 Thus, in contrast to the Model Law (1985), 49  the Ukrainian Arbitration Act allows arbitrating essentially domestic disputes between Ukrainian entities, where at least one of them has foreign investment. 50  In practice, the “foreign investment” requirement has been interpreted to imply that the company in question has at least 10% of foreign shareholders. 51  

3.1.1. The Ukrainian Arbitration Act defines an arbitration agreement as:

“[An] agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.” 52  

3.2.1. The arbitration agreement must be in writing. It may be concluded in the form of a separate agreement, exchange of lettersor in the form of a clause in a contract. An arbitration agreement is also deemed to have been validly concluded if the parties exchange a written claim and a written defence in which one of the parties asserts and the other party does not deny the existence of an arbitration agreement. 53  

3.2.2.  An arbitration agreement may also be incorporated into the parties’ contract by reference. According to the Ukrainian Arbitration Act, a reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is executed in writing and the reference is such as to make the clause a part of the contract. 54  The parties should include a clear and express reference to ensure that the respective provisions of, for example, the general terms and conditions constitute an integral part of the contract.

3.3.1 While Ukrainian law does not provide a consolidated list of disputes that can or cannot be submitted to arbitration, some commentators argue that in addition to the categories of disputes outlined by the CoPC, 55  the disputes that fall within the exclusive jurisdiction of the Ukrainian courts, for example, those as set forth by the Law of Ukraine “On Private International Law” (Law on Private International Law), 56  are not capable of being settled by arbitration. The list of disputes, which some commentators believe to be non-arbitrable, set out in the said Law, inter alia, includes disputes:

• concerning real estate property located in the territory of Ukraine;
• relating to the formalisation of intellectual property rights (eg, registration or certification (patent) issues);
• relating to the registration or dissolution of foreign legal entities or individual entrepreneurs in the territory of Ukraine;
• relating to the validity of information contained in state registries in Ukraine;
• relating to the issuance or cancellation of securities in Ukraine; and
• arising out of the bankruptcy of an entity that is established in Ukraine. 57  

3.3.2 Although the prevailing view is that these provisions of the Law on Private International Law were intended to vest Ukrainian courts with exclusive jurisdiction over the disputes listed above even if a court in another state is also competent to consider such dispute, in practice Ukrainian courts occasionally interpret them as prohibiting parties from resolving these categories of disputes by way of domestic or international arbitration.

3.3.3 It should also be noted that there are diverging views as to the possibility of referral of a dispute between essentially two Ukrainian subjects to an arbitration seated outside of Ukraine. 58  The reason for such debate is that a provision of the Ukrainian Arbitration Act, which provides for a right of Ukrainian entities with foreign investment to submit their disputes to international arbitration, 59  is not one of the articles applicable to arbitration both in Ukraine and abroad. 60  This, in turn, gives some commentators an opportunity to argue that businesses registered under the laws of Ukraine or residing in the territory of Ukraine may not submit their disputes to arbitral institutions or ad hoc tribunals based outside the territory of Ukraine. Although there is no established jurisprudence which could put an end to this long-standing debate, as a matter of practice, it is not uncommon for Ukrainian companies with foreign shareholding to agree on arbitration seated outside of Ukraine.

3.4.1 The Ukrainian Arbitration Act provides that an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract for the purposes of determining the jurisdiction of the arbitral tribunal and the validity thereof. The fact that the main contract may be null and void does not invalidate the arbitration clause as a matter of law. 61  

3.5.1 The Ukrainian Arbitration Act, like the New York Convention, sets forth that in the event of an action being brought before a state court in a matter which falls within the scope of an arbitration agreement, it shall refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. 62  However, in practice, a court before which an action is brought in a matter which is the subject of an arbitration agreement, does not actually refer the parties to arbitration. 63  Instead, the Ukrainian Arbitration Act prescribes that where an action falling within the ambit of an arbitration agreement is brought before a state court, a party wishing to enforce an arbitration agreement is entitled to request, before the presentation of the substantial defence, that the court terminates the proceedings without prejudice. 64  

3.5.2 The Ukrainian Arbitration Act also provides that an action brought before a state court should not delay arbitral proceedings, which may be started or continued, and an award may be made, while the issue is pending before the court. 65

4.1.1 The Ukrainian Arbitration Act provides that an arbitral tribunal shall comprise of three members, unless otherwise agreed by the parties to the dispute. 66  Also, it envisages that the parties are free to agree on the procedure of appointing the arbitrator or arbitrators and, failing such agreement, each party appoints one arbitrator, and the two appointed arbitrators then appoint the third arbitrator. 67

4.1.2 The ICAC Rules (2023) and the MAC Rules (2023) further supplement the above-mentioned provisions of the Ukrainian Arbitration Act and, in addition to expressly setting out that the number of arbitrators cannot be even, 68  they further say that in the absence of an agreement regarding the procedure for constitution of the arbitral tribunal, the arbitrator appointed by party-appointed arbitrators shall act as a presiding arbitrator 69  

4.1.3 Moreover, the ICAC Rules (2023) and the MAC Rules (2023) state that where the parties do not agree upon the procedure for appointing the arbitrators and if, for example, one of the parties does not appoint an arbitrator, or two party-appointed arbitrators fail to appoint the third arbitrator, or (in an arbitration with one arbitrator) the parties fail to agree on the candidacy of such arbitrator, then the arbitrator(s) shall be appointed by the UCCI President. 70  Such order of the UCCI President on the appointment of an arbitrator shall be final and cannot be appealed. 71

Challenge of arbitrators

4.2.1  An arbitrator may only be challenged if he or she lacks the qualifications required by the parties in their arbitration agreement or if circumstances exist that give rise to justifiable doubts as to his or her impartiality or independence. 72  Notably, the party which has appointed an arbitrator can challenge his or her appointment only on the basis of circumstances that became known to such party after the appointment was made. 73

4.2.2  To limit the need for future challenges, the Ukrainian Arbitration Act requires an arbitrator, prior to his or her appointment, to disclose any circumstances, which could give rise to justifiable doubts as to his or her impartiality and independence. 74  This duty of disclosure is a continuing duty with the consequence that arbitrators must disclose any circumstances that arise during the course of the arbitral proceedings that could bring their impartiality or independence into doubt. 75

Procedure for challenging an arbitrator

4.2.3  In principle, the parties are free to agree on the procedure for challenging the arbitrator(s). 76  Failing such agreement, each of the parties may challenge the appointment of the arbitrator(s) within 15 days from the date on which they have been notified of the constitution of the arbitral tribunal or from the date on which they become aware of the circumstances allegedly giving rise to doubts as to the arbitrator’s impartiality or independence. 77  If the arbitral tribunal rejects the challenge, the challenging party may, within 30 days of receipt of the rejection of the challenge, request the UCCI President rule on the challenge. The UCCI President’s decision on challenges is final and is not subject to appeal. 78

4.2.4  The ICAC Rules (2023) and the MAC Rules (2023), provide for a similar procedure for challenging arbitrator(s), with a few differences:

• the challenge cannot be made after completion of the hearing in the case; 79
• if no challenge is made within the prescribed terms, the right to challenge is deemed waived; 80  and
• the challenge is considered by the ICAC/MAC Presidium rather than by arbitral tribunal. 81  

4.2.5  The ICAC Rules (2023) and the MAC Rules (2023), like the Ukrainian Arbitration Act, do not provide for guidance as to the test which the arbitral tribunal or the UCCI President should apply while ruling on challenges to arbitrators. 

Substitution of arbitrators

4.2.6  If an arbitrator becomes de jure or de facto unable to perform his or her functions or for other reasons fails to act without undue delay, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced, as set out above. 82

4.3.1 The Ukrainian Arbitration Act is silent on the issue of responsibility of arbitrators. The Law on Domestic Arbitration, on the other hand, provides that arbitrators may be held accountable for the failure to comply with their obligations assumed in accordance with the applicable rules of procedure or the contract entered into between the parties and the arbitrator(s). 83

4.3.2  Under the Criminal Code of Ukraine, arbitrators may, for example, be held liable for a criminal offence for abuse of their powers, 84  issuing false documents or misrepresentation in such documents, 85  gross negligence, 86  extortion of a bribe, 87 and receipt of other improper advantages. 88

4.4.1 The Ukrainian Arbitration Act is silent on how to calculate a fee to be paid to cover the costs of the arbitration tribunal incurred in connection with the arbitration of a case. At the same time, the Ukrainian Arbitration Act vests the arbitration tribunal with powers to order the parties to the arbitration to pay the provisional advance on costs of the arbitration for examination and settlement of a dispute or making a particular action in the arbitration proceedings. 89

4.4.2 The ICAC Rules (2023) and the MAC Rules (2023), in turn, provide that arbitration fees shall be calculated based on an ad valorem basis and include arbitrators’ fees for examination and settlement of a dispute and an administration fee payable to cover the costs of organisation and conduct of the arbitral proceedings, including general business expenses made by the ICAC and the MAC. 90  Moreover, both the ICAC Rules (2023) and the MAC Rules (2023) provide that the payment of the arbitration fee is the sole responsibility of the claimant. 91

4.4.3  In ad hoc arbitrations seated in Ukraine, the amount of fees and expenses payable to the arbitrator(s) shall be determined based on the agreement between the parties and the arbitrator(s).

4.5.1 Ukrainian legislation does not provide for legal rules regulating the immunity of arbitrators. At the same time, the ICAC Rules (2023) and the MAC Rules (2023) provide that the arbitrator(s), reporter(s), arbitral-appointed expert(s), the ICAC, UCCI and their employees shall not be liable for any act or omission in connection to the arbitral proceedings. 92

5.1.1 Article 16 of the Ukrainian Arbitration Act provides that the arbitral tribunal is competent to rule on its own jurisdiction (including the existence and validity of the arbitration agreement). 93  Any objection to the jurisdiction of the arbitral tribunal shall be raised before the arbitral tribunal no later than the filing of the statement of defence. 94  Any objection that the arbitral tribunal exceeded its jurisdiction should be raised as soon as the facts underpinning such an objection arise in the course of the arbitral proceedings. 95

5.1.2  The arbitral tribunal may rule on the challenge to its jurisdiction either as a preliminary issue (by rendering an award on jurisdiction) or as part of its final award on the merits. If the arbitral tribunal determines the issue of jurisdiction in the award on jurisdiction, either party may challenge such award before the competent national court, ie the court of appeal at the seat of arbitration, within 30 days of its receipt. 96  The decision of a national court shall not be subject to any further appeal. Pending the outcome of the application to the national court, the arbitral tribunal may continue the arbitral proceedings and issue an award, which may subsequently be set aside if the court finds that the arbitral tribunal lacked or exceeded its jurisdiction. 97

5.1.3 The ICAC Rules (2023) and the MAC Rules (2023) do not differ from the above provisions of Ukrainian Arbitration Act. 98

5.2.1 The Ukrainian Arbitration Act, the ICAC Rules (2023) and the MAC Rules (2023) empower arbitrators to grant interim measures related to subject matter of the dispute. Such interim measures may be obtained at a party’s request at any stage of the arbitral proceedings, as well as before they commence. 99  For example, the ICAC President or the MAC President are authorised to grant interim measures at the party’s request even before the arbitral tribunal is constituted. After the constitution of the arbitral tribunal, it may grant interim measures. 100

5.2.2 Tribunal-ordered interim measures can take any form the arbitral tribunal may deem appropriate, including, asset-freezing orders, anti-suit injunctions and orders for disclosure of documents. The MAC President can even grant interim measures in the form of attachment orders against ships or cargo currently located in a Ukrainian port. 101

5.2.3 At the same time, it should be noted that tribunal-ordered interim measures are difficult to enforce, not least because Ukrainian law does not provide for the procedural mechanism enabling parties to apply to local courts to enforce such measures similar to the one provided for under the Model Law (2006). 102

5.2.4 For completeness, Ukrainian courts are also empowered to grant interim measures in support of international commercial arbitration, regardless of where such arbitration is seated, under Article 149(3) of the CPC.

6.1.1 According to the Ukrainian Arbitration Act, arbitral proceedings (whether institutional or ad hoc) are deemed to commence on the date when the request to submit a particular dispute to arbitration has been received by the respondent. 103  However, the ICAC Rules (2023) and the MAC Rules (2023) are somewhat different in that respect, stipulating that the arbitral proceedings are not deemed to have commenced until the claim has been filed and the registration fee has been paid in full. 104

6.2.1The main principles of Ukrainian arbitration legislation are as follows:

• independence and impartiality of the arbitrators;
• equal rights of the parties to participate in the arbitral proceedings and to provide the arbitral tribunal with their evidence; and
• party autonomy.

6.2.2 The arbitral tribunal is entitled to conduct the arbitral proceedings in the manner that it deems appropriate, unless the parties have determined the procedure for the arbitration otherwise. 105

6.3.1 Unless otherwise agreed by the parties, the seat of the arbitration is determined by the arbitral tribunal, taking into account the circumstances of the case and the interests of the parties. 106 The arbitral tribunal is, nevertheless, at all times free to meet for consultation among the arbitrators and examine evidence (including witnesses) at a location other than the seat of arbitration. 107  

6.3.2 In the absence of an express agreement between the parties, the arbitral tribunal shall choose the language of the arbitration and impose requirements on the parties relating to the translation of documents relevant to the arbitral proceedings. 108  The language agreed on by the parties or chosen by the arbitral tribunal applies to any written submissions, hearings, and arbitral awards, or other rulings and/or notifications of the arbitral tribunal. 109  

6.4.1 The Ukrainian Arbitration Act is silent on the issue of multi-party arbitral proceedings. The ICAC Rules (2023) and the MAC Rules (2023), however, contain a number of provisions regulating such issue of arbitral proceedings. 110  In particular, although the powers of arbitrator(s) to order consolidation of arbitral proceedings are not expressly addressed in the Ukrainian Arbitration Act, the ICAC Rules (2023) and the MAC Rules (2023) indirectly recognise such possibility by mentioning it in the Schedules of Arbitration Fees and Costs. 111  

6.4.2 Also, in multi-claim arbitral proceedings, the ICAC Rules (2023) and the MAC Rules (2023) provide that where a statement of claim contains demands arising out of several contracts, it shall be accepted for arbitration, provided that there is an arbitration agreement covering all such claims and that the fulfillment of obligations under these contracts cannot be separated under several claims. Where these prerequisites are not met, the ICAC will propose that the claimant separates his claims and submits independent statements of claim under each contract. 112  

6.4.3 Furthermore, it is worth noting that under the ICAC Rules (2023) and the MAC Rules (2023) the joinder of a third party is allowed, provided all parties and a third party are bound by one arbitration agreement, or all parties and a third party have agreed to conduct the arbitral proceedings with the participation of such third party. 113  As a general rule, the parties may apply for joining a third party only before the statement of defence is submitted to the arbitral tribunal. 114

6.5.1 Where the parties have not explicitly decided on the issue of an oral hearing, the decision is made by the arbitral tribunal, subject to a request of one of the parties. 115  If the parties have not agreed to an oral hearing and no request is made to the arbitral tribunal, it may decide whether to have an oral hearing for the parties to present their evidence and pleadings, or to decide the case based on the written evidence and other materials submitted by the parties. 116

6.5.2 The ICAC Rules (2023) and MAC Rules (2023) allow the arbitral tribunal to conduct the hearing via videoconference. 117  Parties to the proceedings are also entitled to participate in hearings via videoconference by submitting a prior request. In this case, the risks of inability to connect or any other technical issues that may arise during the videoconference are borne by the party that requested such mode of participation. 118  The arbitral tribunal may also rule to hear witnesses and experts via videoconference. 119

6.5.3 The Ukrainian Arbitration Act states that all declarations, documents and other information to be submitted to the arbitral tribunal shall be delivered simultaneously to the other party. Both parties shall also receive any other expert reports, opinions or other documents, which may be decisive for the arbitral tribunal. 120

6.5.4 The format and content of the parties’ submissions to the arbitral institutions, as well as the timetable for filing such submissions, shall be determined by the respective rules of procedure. For example, the ICAC Rules (2023) require all documents and other evidence to be submitted to the secretariat of the ICAC (ICAC Secretariat) or to the arbitration tribunal in no fewer than three copies (with a corresponding increase in the number of copies if several claimants, respondents or third parties participate in the dispute). 121  In addition to hard copies, electronic copies of the documents shall also be submitted to the ICAC Secretariat by the parties.  122 The ICAC Secretariat is responsible for dispatching all the documents in a timely manner. 123 Copies of the statement of claim or the statement of defence and other important documents shall be delivered or handed to the parties against receipt of delivery. 124

6.5.5. Unless the parties agreed otherwise, the Ukrainian Arbitration Act also allows the parties to change or amend their statements of case during the course of the arbitral proceedings unless the arbitral tribunal considers such changes or amendments to be late. 125

6.6.1 Unless otherwise agreed by the parties and in line with the Model Law (1985), 126  the Ukrainian Arbitration Act provides as follows:

• where the claimant fails to communicate his or her statement of claim (with sufficient detail as required by the Ukrainian Arbitration Act), 127  the arbitral tribunal shall terminate the arbitral proceedings; 128  
• where the respondent fails to communicate his statement of defence (with sufficient detail as required by the Ukrainian Arbitration Act), 129  the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations; 130 
• where any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the arbitral proceedings and make the award based on the evidence before it; 131  and
• where any party fails to produce evidence at the request of an arbitral tribunal, it may draw adverse inferences from parties’ non-production of discoverable evidence, or refuse to acknowledge an allegation of fact, or it may continue the arbitral proceedings and make an award on the merits based on the evidence available before it. 132  

6.7.1 The Ukrainian Arbitration Act contains only limited provisions on the submission of evidence. 133  Each party bears the burden of providing evidence sufficient to prove the facts upon which it seeks to rely in support of its claims or defences. The Ukrainian Arbitration Act further requires that any information provided by one party to the arbitral tribunal shall be shared with all other parties to the arbitral proceedings. 134 

6.8.1 Unless otherwise agreed by the parties, the arbitral tribunal is free to appoint an expert to clarify issues arising out of the consideration of a case requiring specialised knowledge. 135  The arbitral tribunal may at its discretion or at the request of either of the parties, order an expert to report on specific issues to be determined by the arbitral tribunal. 136  The tribunal-appointed expert does not necessarily need to be an expert certified according to the Law of Ukraine “On Forensic Expertise”. 137  

6.8.2 The parties may also seek from an arbitral tribunal leave to produce an expert report in support of their claims or defences in order to clarify issues requiring specialised knowledge. An expert may submit his written report if the arbitral tribunal grants such leave. 138  The parties may at their discretion choose an expert to deliver an expert opinion that will further be submitted to the arbitral tribunal. The arbitral tribunal usually requests the party-appointed expert to provide his or her written opinion in advance.

6.8.3 Unless otherwise agreed by the parties, if a party requests so, or if the arbitral tribunal considers it necessary, a tribunal-appointed expert shall, after the delivery of his or her written or oral report, participate in a hearing where the parties have the opportunity to examine him or her and to present party-appointed expert witnesses in order to testify on the points at issue. 139 

6.8.4 The ICAC Rules (2023) state that the arbitrators are free to decide on the admissibility, relevance, credibility and significance of each piece of evidence, including those given by an expert witness. The arbitrators thus are not bound by the findings of an expert (either tribunal or party-appointed) and shall evaluate the evidence before them. 140  

6.8.5 Unless the parties agreed otherwise, it is within the ambit of the arbitral tribunal’s powers to define the questions that will need to be reported upon by a tribunal-appointed expert. 141  The ICAC Secretariat will share any reports prepared by such experts with the parties. 142

6.9.1 The Ukrainian Arbitration Act does not address the issue of confidentiality. In practice, however, arbitral proceedings seated in Ukraine are deemed confidential and arbitral awards are not published in full in the same way as court judgements are. For example, the ICAC Rules (2023) provide that unless otherwise agreed by the parties, the consideration of cases, and other activities of the ICAC related to the consideration of cases, are confidential. 143  Moreover, the arbitral tribunal and parties shall observe the confidentiality of any document submitted by a person or a party which is not a party to the arbitration proceedings and which is not available in the public domain. 144  

6.9.2 It should be also noted that the ICAC Presidium may take a decision on the publication of a summary or excerpt from arbitral awards and orders, provided none of the parties to the arbitral proceedings objects within 30 days after the receipt of such order or award. Publication shall be made in a manner that does not permit the identification of the parties to the proceedings. 145

7.1.1 The arbitral tribunal must resolve the dispute in accordance with the law chosen by the parties. Unless otherwise agreed, the parties’ agreement on the governing law refers only to the substantive law of the chosen country and not to its conflict of laws rules. 146  In the absence of an agreement between the parties on the choice of governing law, the arbitral tribunal shall apply the law determined by the conflict of laws rules that it considers to be appropriate. 147

7.1.2 Moreover, in all cases, the arbitral tribunal makes a decision in accordance with the terms of the contract and taking into account the trade customs relating to the said contract. 148

7.2.1 The Ukrainian Arbitration Act provides that an award must comply with the following formal requirements:

• it shall be made in writing and shall be signed by the arbitrator(s); 149  and
• it shall contain the date and seat of the arbitration, the reasons upon which it is based, the arbitral tribunal’s findings on the issues submitted for consideration and the allocation of costs between the parties. 150  

7.2.2 In addition to the above, the ICAC Rules (2023) and MAC Rules (2023) require that the award should contain:

• the name of the arbitral institution;
• the case registration number;
• the composition of the arbitral tribunal and the procedure of its constitution;
• the names of the parties to dispute and other persons participating in the arbitral proceedings;
• the substantiation of the competence;
• the subject matter of the dispute and a summary of the circumstances of the case; and
• conclusion on the granting or dismissal of the claim; 151

7.2.3 The ICAC Rules (2023) and MAC Rules (2023) also provide that before signing any arbitral award, the arbitral tribunal shall submit the draft of the award to the Secretary General of ICAC (or the Secretary General of MAC, respectively), who may draw attention of the arbitral tribunal to any identified non-compliance of the draft award with the requirements set forth by the respective rules of procedure. Although the above-mentioned provision does not vest the Secretary General with powers to review awards on the merits, he or she may draw attention of the arbitrator(s) to the form of the award, errors, omissions or typos. 152

7.2.4 Dissenting opinions of arbitrators may be set forth in a separate document, which shall be attached to the award. 153

7.2.5 After the award has been made, each party should receive a copy thereof signed by the composition of the arbitration tribunal. 154  In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated. 155  The ICAC Rules (2023) and MAC Rules (2023) further clarify the said provision of the Ukrainian Arbitration Act, establishing that the person responsible for specifying the reasons of the absence of any signatures at the arbitral award is the ICAC President or the MAC President, respectively. 156

7.2.6 The ICAC Rules (2023) and MAC Rules (2023) also provide that after all circumstances of the case have been sufficiently clarified, the arbitral tribunal shall proceed to the rendering of an arbitral award. 157  No operative part (ie disposition) is announced to the parties or their representatives at the end of the oral hearings.

7.2.7 The arbitral tribunal shall render the award within 30 days from the date of completion of the hearing. In exceptional circumstances, the ICAC President or MAC President may extend the period for rendering of the arbitral award. 158

7.3.1 The parties are free to settle their dispute during the course of arbitral proceedings. A settlement by the parties will result in the termination of the arbitral proceedings. 159  In the event that the parties do not wish to have their settlement in the form of an award, they may notify the arbitral tribunal that they have reached the settlement and request that the arbitral tribunal terminates the arbitral proceedings. 160

7.3.2 The arbitral tribunal may, at the request of the parties and in the absence of objections from its side, record a settlement in the form of an award on the agreed terms. 161  Such an award shall indicate that it is an award. Moreover, such an award will be subject to the same requirements – and will have the same status and effect – as any other award rendered by the arbitral tribunal. 162

7.4.1 Under Ukrainian law, arbitral tribunals are empowered to award interest upon the claimant’s request. Such interest is generally determined in accordance with the law applicable to the dispute at hand. Ukrainian law also permits awarding liquidated damages according to the rates (if any) stipulated in the contract between the parties. 163 However, Ukrainian legislation prohibits ordering penalties exceeding double the key policy rate of the National Bank of Ukraine for the relevant period, unless otherwise agreed by parties to a contract. 164

7.4.2 The Ukrainian Arbitration Act does not offer guidance as to how costs of the arbitration should be allocated between the parties. This issue is left to either the agreement of the parties, if any, or in the absence of any agreement, to the discretion of the arbitral tribunal.  165

7.4.3 The Schedule on Arbitration Fees and Costs to the ICAC Rules (2023) establishes the general rule that the arbitration fee shall be apportioned to the party against which the award has been rendered, unless otherwise agreed by the parties. 166  In case of partial satisfaction of the claim, the arbitration fee is apportioned on pro-rata basis. 167 The Schedule further provides that the expenses incurred by the successful party or parties in connection with the protection of their interests may be charged to the other party or parties to the extent that arbitral tribunal determines that the amount of such costs is reasonable and substantiated. 168

7.4.4 Additionally, the arbitral tribunal may apportion fees and costs taking into account the particular circumstances of the case, such as inappropriate or bad faith tactics of a party, including tactics causing unjustified delay in the arbitral proceedings. 169

 Current restrictions on cross-border payments of arbitration fees, costs, deposits, etc.

7.4.5 Upon the commencement of the full-scale war, on 24 February 2022, the National Bank of Ukraine passed Resolution No 18 “On the operation of the banking system during the introduction of martial law” (Resolution No 18). This legislationintroduced a number of restrictions, in particular, on cross-border foreign currency payments, with the exception of the cases specified. 170

7.4.6 Currently, only the following arbitration-related payments are allowed under Resolution No 18:

• transactions related to the consideration of cases at the ICAC and MAC;
• transactions by state-owned enterprises related to payment of registration and arbitration fees, including advance payments to cover arbitration expenses, made within the framework of preparation, submission and consideration of claims to international commercial and investment arbitrations. 171

7.4.7 Thus, private Ukrainian enterprises cannot currently make any arbitration-related cross-border payments from Ukraine to arbitral institutions’ foreign bank accounts, including payments of registration, arbitration fees, costs, and deposits.

7.5.1 Arbitral proceedings may be terminated or result in a final award on the merits. The Ukrainian Arbitration Act provides that the arbitral tribunal may terminate the proceedings where:

1. the claimant withdraws its claim and the respondent does not object thereto or the arbitral tribunal does not recognise such objections to be reasonable;
2. the parties agree to terminate the proceedings; or
3. for any other reason, the arbitral tribunal considers that continuation of the proceedings would be unnecessary or impossible. 172

7.6.1 The award is considered to be final and binding upon the parties and is not subject to an appeal on points of law or fact. 173  However, the effect of an award on the same disputes involving the same parties, in particular, the res judicata, as well as what is its scope, remains debated.

7.6.2 Under Ukrainian law, the res judicata effect of an award is that a commercial court shall refuse to open the proceedings or shall terminate them if it is established that an award has been rendered in a case between the same parties, on the same issue and arising out of the same grounds. 174

7.6.3 Where at least one of the parties is an individual, the case shall to be heard by the general (civil) courts. In contrast with commercial courts, the civil courts adopt a different view as to the scope of the res judicata effect of arbitral awards since the CPC envisages that a civil court shall refuse to open the proceedings or shall terminate them only when the award has been rendered by a domestic arbitration tribunal. 175  This means, in all likelihood, that only awards issued by domestic arbitration courts (as opposed to international commercial tribunals) shall be given a res judicata effect, since, as noted above, 176  Ukraine has two different legal frameworks for international and domestic arbitration.

7.6.4 As to the circumstances established in an award of international or domestic arbitration tribunal, they shall not be given a preclusive effect and shall be proven in accordance with the general evidentiary rules. 177 

7.7.1 The Ukrainian Arbitration Act allows an arbitral tribunal (on a party’s request or on its own initiative) to correct any errors (misprints, errors of calculations, etc.) in the award. 178  The parties have 30 days to apply for such corrections from the date the award has been received by the parties. 179  The arbitral tribunal may also clarify anything that is unclear in the award (subject to the parties’ consent). Such corrections or clarifications shall become integral parts of the award. 180

7.7.2 The parties may also request the arbitral tribunal to make an additional award. Such awards may cover issues that were submitted to the arbitral tribunal for consideration but were not resolved in the “main” award. If such requests are considered by the arbitral tribunal to be proper, it has a further 60 days to make an additional award. 181

8.1.1 The Ukrainian Arbitration Act prohibits national courts from intervening in arbitral proceedings except in the circumstances expressly prescribed by the Ukrainian Arbitration.  182  The circumstances in which national courts are entitled to intervene include:

1. referral of parties to arbitration; 183 
2. granting interim measures in support of arbitration; 184
3. ruling on the jurisdiction of the arbitral tribunal; 185 
4. court assistance in taking evidence in support of arbitration; 186  
5. ruling on applications for setting aside arbitral awards; 187  and
6. enforcement and recognition of arbitral awards. 188  

8.2.1 In line with the provisions of the Model Law (1985) 189  and the New York Convention, 190  Article 8 of the Ukrainian Arbitration Act provides that the court shall terminate its proceedings without prejudice as soon as it becomes aware  191 of the existence of a binding arbitration agreement. 192  However, if both parties waive their right to arbitration, the court may proceed to hear the case on the merits.

8.2.2 The legal effect of the termination of the court proceedings without prejudice is that the claimant’s claim is left without consideration, thereby a dispute which falls within the scope of an arbitration agreement is effectively precluded from being litigated before a state court. 193

8.2.3 At the same time, the court will hear a case unless it finds that the arbitration agreement is invalid, inoperative or incapable of being performed under the law applicable to that agreement. 194  Unlike other less interventionist jurisdictions, in Ukraine, a question of whether an arbitration agreement is invalid, inoperative or incapable of being performed shall be decided by a court following a full hearing. 195  Therefore, Ukrainian courts are not required to give any deference to an arbitral tribunal’s competence to rule on their own jurisdiction (competence-competence). It follows that regardless of the determination of the issue of enforceability, validity or effect of an arbitration agreement by the arbitral tribunal in question, the court seized to rule on the same issues is required to do so independently.

8.2.4 The level of scrutiny of arbitration agreements may be different where its parties originate from countries, which are parties to the 1961 European Convention. If either of such parties has initiated arbitration proceedings before any recourse to a court, Ukrainian state courts subsequently asked to deal with the same subject matter between the same parties or with the question of whether the arbitration agreement was non-existent or null and void or had lapsed, shall stay their ruling on the arbitral jurisdiction. 196  In case the arbitral tribunal finds that it is competent to hear a dispute before it, then the Ukrainian state court must defer its determination on a plea that the arbitral tribunal does not have jurisdiction until after a final award on the merits is made.

8.2.5 The above, however, does not preclude either party from challenging the arbitral tribunal’s assumption of jurisdiction at the post-award stage by filing an application for setting aside an arbitral award for lack of jurisdiction. 197 

8.3.1 As noted above, 198  the Ukrainian Arbitration Act provides that appellate courts at the seat of arbitration are vested with certain functions of arbitration assistance and supervision. Such supervisory functions may, among other things, be realised by an appellate court if any of the parties to the arbitration proceedings requests it to decide on the jurisdiction of the arbitral tribunal. The Ukrainian Arbitration Act also provides that any party to arbitral proceedings may challenge the ruling of the arbitral tribunal on its jurisdiction if it ruled so as a preliminary question within 30 days from the date when the parties have learned about such ruling. 199  

8.3.2 Ukrainian law does not provide for the possibility of obtaining declaratory relief in support of international arbitration.

8.4.1 CPC provides for a possibility of obtaining court-ordered interim measures in support of arbitration. Such protective measures may be sought by a party in respect to a dispute, which has been referred to international or domestic arbitration. 200

8.4.2 The application for interim measures should be filed with an appellate court at the seat of arbitration, the registered place of a defendant or the location of his or her assets and should be accompanied with:

1. a copy of the statement of claim;
2. a proof that the statement of claim has been filed with an arbitration court in accordance with the respective rules of procedure; and
3. a copy of the arbitration agreement. 201 

8.4.3 The court where the interim measures are sought, may, at its discretion, order the party requesting interim measures to provide appropriate security. The purpose of this is to reimburse a party against which such measures are taken for any costs and damages it may have incurred, should the measures or the order not be granted. 202 

8.4.4 The CPC also allows for the possibility to request interim measures in the course of recognition and enforcement proceedings with respect to foreign arbitral awards. 203  Such interim measures may be granted by a state court at any time during consideration of the enforcement application if it considers the absence of certain interim measures of protection may significantly complicate future enforcement of an award or make it impossible. 204

8.4.5 It should be also noted that although the Ukrainian Arbitration Act vests arbitrators with express powers to grant interim measures at a party’s request, 205  it remains silent when it comes to court powers to enforce such tribunal-ordered interim measures. In the same vein, neither CPC nor CoPC vest a Ukrainian court with such powers. Thus, in the absence of legislative framework providing for the recognition and enforcement of interim measures ordered by arbitral tribunals similar to those contained in the Model Law (2006), tribunal-ordered interim measures are enforced under the same procedure as final arbitral awards on the merits.

8.5.1 The Ukrainian Arbitration Act ensures that the arbitral tribunal or a party to an arbitration with the permission of the arbitral tribunal, may address a competent court of Ukraine with a request for assistance in collecting evidence, in particular to examine a witness, discover evidence or inspect them at the place of their location. 206  The procedural framework for consideration of respective applications is envisaged in the CPC. 207  

9.1.1 Ukrainian law does not vest parties to arbitration proceedings with a right to appeal against an award issued by institutional or ad hoc arbitrations seated in Ukraine on a point of law or fact. However, even though awards cannot be appealed on the merits, they may still be subject to challenge to a court of appeal at the seat of the arbitration. 208  This means that all awards rendered by an arbitral tribunal constituted under the auspices of the ICAC or MAC may only be challenged in the Kyiv Court of Appeals.

9.2.1 Although, as mentioned above, awards are not subject to appeal on the merits, a decision of an appellate court setting aside an award, or refusing to set it aside, may be challenged in the Supreme Court. 209 

9.3.1 The CPC and the Ukrainian Arbitration Act contain an exhaustive list of the grounds for setting aside an award, which mirrors the grounds contained in the Model Law (1985), 210  namely:

(i) if the party making the application furnishes proof that:

• a party to the arbitration agreement had some incapacity; or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of the law, under Ukrainian law; or
• the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present its case; or
• the award deals with a dispute that was not contemplated by, or not falling within the terms of, the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. However, if the decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
• the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a mandatory provision of the Ukrainian Arbitration Act or, failing such agreement, was not in accordance with the Ukrainian Arbitration Act; or

(ii) if the court finds that:

• the subject-matter of the dispute is not capable of settlement by arbitration; or
• the award is in conflict with the public policy of Ukraine.

9.3.2 Since at least 1999, when, in Resolution No. 12, the term “public policy” was interpreted in a broad and non-specific way,  211 the alleged conflict of the award with the public policy of Ukraine has been an argument frequently invoked by parties to arbitration proceedings unsatisfied with their outcome. In some previous high-profile cases, the courts exercised their broad discretion in deciding whether the award contradicts the vaguely defined concept of “public policy” and set aside those awards that were felt to be contrary to Ukrainian national interests. In order to put to an end to this practice, in 2015, the High Specialised Court clarified that the public policy exception for challenging arbitral awards is of “extraordinary character”, 212  and, therefore, one may logically infer it should be used by the supervisory courts as a ground for setting aside arbitral awards only in extreme cases.

9.3.3 The application to set aside an award must be submitted to the appellate court at the seat of arbitration within three months from the date of the receipt of the award by the award debtor or, if a party requested the arbitral tribunal to make corrections in or interpretation of the award, starting from the date on which the arbitral tribunal made the decision based on such request. 213

9.3.4 Upon the application of a party to arbitration proceedings, a court considering an application to set aside the award, may suspend the proceedings and provide  arbitration tribunal with an opportunity to take actions which it deems necessary in order to remedy grounds for setting aside the award. 214

9.3.5 If the award is set aside by the competent court, the dispute may be re-submitted to another arbitral tribunal, unless this is expressly forbidden by law. 215  

9.4.1 The CPC and the Law on Domestic Arbitration set out the same five grounds on which a domestic award may be challenged:

1. the subject matter of the dispute is not capable of settlement by arbitration;
2. the award is rendered in a dispute that was not covered by the respective arbitration agreement, or on matters beyond the scope of competence of the arbitral tribunal;
3. the arbitration agreement is declared invalid by the competent court;
4. the arbitral tribunal was not composed in accordance with the relevant provisions of the Law on Domestic Arbitration; or
5. the arbitral tribunal decided on rights and obligations of parties which did not participate in the arbitration proceedings. 216  

10.1.1 If an award issued by a domestic arbitration tribunal is not complied with voluntarily, an award creditor may file with an appellate court of the seat of arbitration an application seeking the issuance of a writ of executions. The procedure for considering such applications and issuance of writs is governed by the CPC and the Law on Domestic Arbitration. 217  

10.1.2 Should the appellate court grant the application and issue the writ, then, by submitting an application with a state enforcement office or a private bailiff, the latter can be brought for enforcement as provided by the Law of Ukraine “On Enforcement Proceedings” (Enforcement Law). 218 

10.2.1 Foreign awards may be enforced in Ukraine only after being recognised by a Ukrainian court pursuant to the New York Convention, which is the most important treaty concerning recognition and enforcement of foreign arbitral awards, 219  or any other applicable international instrument.  220  In the absence of a treaty providing for recognition and enforcement, foreign awards will be recognised and enforced based upon the principle of reciprocity, 221  which is presumed unless proved otherwise by a party resisting enforcement. 222

10.2.2 Awards may be submitted to enforcement by the Kyiv Court of Appeals within three years from the date on which they became effective, 223  although this term may be extended by the courts on the basis of valid excuses. 224

10.2.3 The Ukrainian Arbitration Act and the CPC set out the grounds upon which a Ukrainian court may refuse recognition and enforcement of a foreign award. 225  In summary, the grounds for refusing recognition and enforcement are the same as those for setting aside an award. 226  However, an additional ground is provided by the Ukrainian Arbitration Act and the CPC in that the Ukrainian courts may refuse recognition and enforcement if the award has not yet become binding on the parties, or if it was annulled or its enforcement suspended by the courts of the country where, or under which law, it was made. 227

10.2.4 If an application for setting aside or suspending the enforcement of an award has been made to a competent court, the court where recognition or enforcement is sought may, at its discretion, adjourn its decision. 228  It may also order the other party to provide appropriate security. 229

10.2.5 Also, before the enforcement court hands down a decision on an application to enforce the award, any party to the arbitration proceedings has a right to file with such court an application to set aside the award together with a petition to consider both applications in a single proceeding. 230

10.2.6 In Ukraine, foreign awards are enforced under the “partial” control of the supervisory courts (ie, the award is considered to be binding for the parties from the date upon which it was issued, 231  but may be enforced only upon application in writing to the competent court). 232  Decisions of arbitral tribunals seated outside Ukraine shall be recognised and enforced in Ukraine by the Kyiv Court of Appeals. 233  The decision of the Kyiv Court of Appeals may be appealed to the Supreme Court. 234  

10.2.7 When making an application to recognise and enforce an award, a party must submit an original or a copy of the award certified by the notary public. If the award is in a language other than Ukrainian, the party must also produce a translation of the above-mentioned documents certified by an official or sworn translator, or by a diplomatic or consular agent. 235  In addition to these documents, and likewise the New York Convention, 236  the CPC also requires parties in the context of a foreign award to produce the original or a notarized copy of the arbitration agreement and its translation into Ukrainian or other language if such possibility is provided for under an international treaty. 237

10.2.8 If the application is filed by a representative of a party in addition to documents listed, that representative must file a power of attorney certifying his or her power to represent the party in question and a translation thereof into the Ukrainian language. 238

11.1.1 CoPC provides that any discrepancies in the text of an arbitration agreement – irrespective of whether it provides for the referral of a dispute or disputes to domestic or international arbitration tribunals – as well as any doubts as to its validity, viability and capacity to be performed, shall be resolved by a court in favour of its validity, viability and capacity to be performed. 239  CPC also contains a similar provision with the exception that it applies only to domestic arbitration. 240

11.1.2 Before the above-mentioned pro-arbitration approach to interpretation of arbitration agreements was introduced to the CoPC and CPC by the Law No 2147-VIII, Ukrainian courts used to take a formalistic approach to the interpretation agreements and on a number of occasions they have held an arbitration agreement to be invalid or inoperative as a result of a mere misspelling of the name of the arbitral institution or where the arbitration clause refers to the rules of the arbitral institution without naming it expressly. Thus, in order to avoid any potential risk that a Ukrainian court may refuse to recognise an arbitration agreement, it is advisable that the arbitration agreement expressly indicates the full name of an arbitral institution and the precise range of disputes that the parties have agreed to submit to arbitration. 241 

11.2.1 In international arbitration, a situation where there is a significant interval between the time when a final award is issued by the arbitrators and when such award is enforced is not that uncommon. Thus, an award on interest until the date of payment may play an important role in compensating a party for the loss of opportunity to use money to which it is entitled and, at the same time, to prevent the counterparty from being unjustly enriched as a consequence of wrongfully withholding money that did not belong to it.

11.2.2 However, until the entry into force of Law No 2147-VIII in 2017, Ukrainian legislation did not address the issue of whether awards ordering interest until the date of payment are enforceable in Ukraine. In the absence of express legislative framework providing for the possibility of enforcing such arbitral awards, there was a significant degree of uncertainty over the possibility of their recognition and enforcement. In particular, while some enforcement courts considered such awards unenforceable for the reason of the alleged violation of the Ukraine’s public policy, other courts found no issues with their recognition and enforcement.

11.2.3 Alongside other changes in the legislative landscape, the Law No 2147-VIII introduced a rule providing that since 1 January 2019 an enforcement court shall indicate in its judgement enforcing the award that post-award interest, if any, shall accrue until the day of payment. 242  Final calculations as to the interest due in such case shall be made by a state enforcement office or a private bailiff according to rules set out in the judgement of a state court enforcing an arbitral award. 243